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Jason resided on the second floor of a two-family house and was in the process of completely renovating his apartment. After moving the location of his living room to the back of his house, he planned to convert the existing bay window of that room to sliding doors leading to a suspended terrace. When Albert, the downstairs neighbor, became aware of Jason’s plans he appeared in Bet Din and protested the building of the terrace. Albert explained that the scheduled terrace is situated directly above his downstairs bay window and it would block the sunlight entering his home. Jason counterclaimed that the terrace would reduce a very small percentage of sunlight entering the downstairs home, and that he desperately needed the outdoor suspension to serve as the area for a small sukkah. Additionally, Jason commented that only a year ago Albert unilaterally converted a downstairs window into a narrow doorway in order to gain easy access to the driveway. Jason threatened that if Albert is unwilling to forgo his nonsensical claim regarding the terrace, then in turn he is demanding that Albert close the unauthorized doorway.

Is Jason permitted to build the suspended terrace? Can Jason require Albert to close up the doorway? How should the Bet Din rule and why?

TORAH LAW

According to the ruling of the Shulhan Aruch, one is required to distance the construction of a wall facing his neighbor’s window. The obvious rationale behind this ruling is that one is restricted from diminishing the degree of light entering his neighbor’s home. However, if the recommended standard distance from a window is allocated, the construction of a wall within the boundaries of one’s property is permissible. The above ruling is applicable only in instances in which the next-door neighbor maintains the legal right to his window. Numerous laws govern whether a homeowner is legally
entitled to a newly founded window, and a competent halachic authority is to be consulted before ruling on the matter.

Contemporary halachic authorities debate whether the suspension of a terrace over a downstairs window is similar to the prohibition of construction of a wall in front of a window. According to numerous opinions, an overhead terrace is more severe than the construction of a wall. Hence, in order to suspend a terrace, one is required to designate a greater distance between the terrace and the lower window than the distance of a wall facing a window. If, nevertheless, the light entering the downstairs home is diminished even after the terrace is significantly raised, it may not be built. It is important to note that a Bet Din ruling on the matter will place much less emphasis on the aesthetic effect of sunlight as opposed to ample light required for normal functioning. Other opinions rule leniently with regard to an overhead terrace, since the area in front of the window is not blocked by a wall, and light is entering the home.

By rule of the Shulhan Aruch, even in instances in which halachic authorities debate whether the actions of a neighbor are damaging, one maintains the right to legally protest the impending damage. Prior to the construction of a potentially damaging project, one can demand of his neighbor to maintain the present status quo. Furthermore, in the instance of a suspended terrace, both neighbors are partners in the shared airspace of their property, and the downstairs neighbor can thus easily object to such damage. Nevertheless, if it is clear that no damage is anticipated from a newly constructed terrace, a Bet Din will sanction the project.

Leading halachic authorities rule that one may not prevent his neighbor from doing construction without a valid claim. Even if the property is jointly owned, if the construction does not come at a sacrifice to the claimant, his complaint is discarded. In instances in which a neighbor originally had the right to prevent construction, but rather chose to remain silent until after its completion, he consequently forfeited his right to further do so.

VERDICT Cease and Desist

After visiting the location, our Bet Din ruled in favor of Albert, preventing the construction of the terrace, and rejecting Jason’s threat to force Albert to close the doorway in the driveway. As mentioned in Torah law, a suspended terrace over a window diminishing the light entering the downstairs home is grounds to restrict its construction. Upon inspection, it was evident just from the scaffolds positioned over the window, that during the noontime hours the light entering Albert’s home was clearly reduced. The reduction of light during those hours not only affected the beauty of the sunlight entering the home, but actually made it difficult to read in the room. As per Jason’s threat to close the doorway, our Bet Din explained to him that for multiple reasons his claim is invalid. Firstly, the doorway in no way limits or affects Jason’s everyday life. Secondly, Jason forfeited his claim by remaining silent and not protesting from the onset of the conversion of the window to a door.